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The use of material from social media platforms like Facebook as evidence in international criminal proceedings is a developing area. One example is last year’s ICC warrant for the arrest of Mahmoud al-Werfalli, an alleged commander in the Al-Saiqa Brigade in Libya, which is based largely on evidence of alleged atrocities collected from social media platforms including Facebook.

Mahmoud al-Werfalli: alleged commander in the Al-Saiqa Brigade in Libya

Shortly after the warrant was issued, Professor Irving posted on Opinio Juris that questions will arise as “the ICC steps into this new era of open source evidence” – in particular problems over the verifiability of evidence. Irving observed that the International Criminal Court’s decision offered “no indication of the methods used to verify the videos being relied upon, or who they were verified by.”

Meanwhile concerns increase that platforms such as Facebook and YouTube have started to remove offending material automatically via algorithms, before it can be analysed by investigators. Undeterred, organisations like Bellingcat continue to use open source techniques to try to verify material gathered from social media platforms and elsewhere online. They allege that Mahmoud al-Werfalli’s crimes continue.

The internet is a relatively new arena for evidence gathering in international criminal cases. Corporates such as Facebook are yet to grapple fully with their roles and responsibilities.

One option for social media companies would be simply to cooperate with international tribunals: for example by providing valuable meta-data, verifying upload dates, location data, original files, editing histories, cached pages and so on. Although this would not necessarily answer all questions, it would go some of the way towards ensuring that the evidence is ready to be tested in court.

But what approach should we expect social media companies to take in practice?

Work is surely being done behind the scenes in cases like Werfalli. What comes of this remains to be seen, should he ever be transferred to face trial at the ICC.

While we wait to see what transpires in the Werfalli case, Facebook’s attitude towards cooperation with the ICC is revealed by a recent US court filing in another case now pending before a Californian District Court: Rainsy v Facebook Inc.

This case, at least at first blush, has little to do with the ICC. It is a discovery application made by Sam Rainsy, the self-exiled former leader of a Cambodian opposition party, who wants to obtain material from Facebook relating to Cambodia’s Prime Minister. Sam Rainsy’s discovery application is made under 28 USC 1782, pursuant to which US courts may – if various conditions are satisfied – order discovery to assist litigants before foreign and international tribunals. His application seeks to uncover the origin and genuineness of “likes” on the Prime Minister’s Facebook page, ostensibly for use in Cambodian court proceedings.

Facebook opposes Sam Rainsy’s move on various grounds, one of which raises a point of particular significance for this blog.

Facebook contends that the application is actually an attempt to bolster an earlier and different complaint (more on which in a moment) his lawyers made to the ICC. Facebook makes the following striking submission:

Because the application is an obvious attempt to evade federal law by obtaining discovery that may be used in support of ICC proceedings, this Court should deny the application.

?

Facebook submits that US law bars US courts from granting any discovery assistance to the ICC. It relies on the wording of another provision, 22 USC §7423(e):

Notwithstanding section 1782 of title 28 or any other provision of law, no United States Court, and no agency or entity of any State or local government, including any court, may cooperate with the International Criminal Court….

This prohibitory language looks clear. Facebook relies on it.

This same point came up in an earlier 28 USC §1782 application, again involving Sam Rainsy together with self-described “Filing Victims before the International Criminal Court.” On that occasion, the applicants sought material from energy giant Chevron relating to the 2016 murder of Kem Ley, a well-known political commentator, in the cafe of a Phnom Penh petrol station.

Like Facebook, Chevron also submitted that 22 USC §7423 bars US discovery orders in support of potential ICC proceedings.

In the Chevron case, those who represent Sam Rainsy and the ICC Filing Victims replied that the position is not so clear cut. They pointed to another provision in the same chapter, 22 USC §7433, which provides for a “Foreign Nationals Exception” whereby:

[n]othing in this subchapter shall prohibit the United States from rendering assistance to international efforts to bring to justice […] foreign nationals accused of genocide, war crimes, or crimes against humanity.

The debate over the availability of §1782 discovery orders in support of potential ICC proceedings was left unresolved: Chevron agreed to provide certain material in order to settle the matter.

Now Facebook seems to have taken over the baton by refusing to provide discovery, partly on the principled basis that US law cannot compel companies to cooperate, even tangentially, with hypothetical ICC proceedings. This submission appears to state Facebook’s unequivocal position.

The significance of Facebook’s submission goes beyond any particular dispute involving Sam Rainsy. It seems that, in the case of Facebook at least, the ICC’s internet-based investigations will be restricted to working from open source evidence – for the time being.